Citation Nr: 0601839
Decision Date: 01/23/06 Archive Date: 01/31/06
DOCKET NO. 03-25 378A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for rheumatoid arthritis,
bilateral hips.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. Carr, Associate Counsel
INTRODUCTION
The veteran had verified active service from May 1945 to
April 1963. His DD Form 214 also reflects that he had 2
years, 5 months, and 29 days of other service.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 2001 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida, which denied service connection for
rheumatoid arthritis, bilateral hips, and service connection
for rheumatoid arthritis of the lower back. Service
connection for bilateral hearing loss was granted with a
noncompensable evaluation, effective March 30, 2001. Notice
of this decision was sent on November 20, 2001. The veteran
filed a notice of disagreement with this decision in June
2002 and a statement of the case was issued in November 2002.
In April 2003, a supplemental statement of the case (SSOC),
dated March 31, 2003, was issued to consider new evidence
submitted by the veteran. In September 2003, another SSOC
was issued to consider additional evidence. The veteran was
informed that, although he had not perfected his appeal by
filing a VA Form 9, new evidence had been received within the
60 day period initiated from the April 1, 2003 SSOC, which VA
was required to consider in connection with the claims on
appeal. In September 2003, the veteran submitted a statement
wherein he stated that the 10 percent evaluation assigned for
his bilateral hearing loss by a September 2003 rating
decision was satisfactory. However, it was indicated that he
was dissatisfied regarding the claims of service connection
for rheumatoid arthritis, bilateral hips, and service
connection for rheumatoid arthritis of the lower back.
Accordingly, the Board has decided that this correspondence
constitutes a timely substantive appeal with regard to those
two issues. See 38 C.F.R. § 20.302(b).
The Board notes that, by a June 2005 rating decision, service
connection for psoriatic arthritis of the lumbar spine
(claimed as rheumatoid arthritis, lower back) was granted.
Consequently, this issue is no longer in appellate status.
Also, the Board notes that a January 2000 rating decision
denied service connection for rheumatoid arthritis, bilateral
hips. The issue was readjudicated by the RO in November 2001
in order that the matter be considered under the Veterans
Claims Assistance Act of 2000 (VCAA). Accordingly, the
matter is being considered as a claim of entitlement to
service connection, and not as a claim to reopen.
In a June 2005 statement, the veteran indicated that his
claim was for service connection for arthritis and/or Paget's
disease, bilateral hips. However, the Board notes that
service connection for Paget's disease has been previously
denied by the RO.
In a December 2005 representative brief, it was acknowledged
that it was stated in the February 2005 VA examination report
that, with regard, to the veteran's hips, the only condition
affecting that region of his body is his Paget's disease,
"which is a very separate condition unrelated to the
psoriatic arthritis of the lumbar spine and [sacro iliac]
joints." However, it was later stated that the veteran was
seeking service connection for a bilateral hip disorder,
arguing that it was a continuation of his service-connected
psoriasis. The veteran is service-connected for psoriasis;
the condition is rated as 30 percent disabling effective
April 17, 1963. The April 2005 SSOC did acknowledge that the
veteran had psoriasis and noted the above-mentioned findings
reported by the February 2005 VA examiner, including her
statement that the veteran did not have a hip condition.
Accordingly, the Board finds that the RO's consideration of
the claim of entitlement to service connection for rheumatoid
arthritis, bilateral hips, included as secondary to
psoriasis.
REMAND
In a September 2003 statement, the veteran indicated that he
had been treated at VA medical facilities in Newark, New
Jersey, Lexington, Kentucky, Louisville, Kentucky, and
Pensacola, Florida.
A review of the veteran's claims folder reveals a June 1963
VA examination report, which states that the examination was
conducted at the Newark RO, VA outpatient records from Bay
Pines, Florida, records from the VA outpatient clinic in
Pensacola, examination reports from the VA Medical Center in
Biloxi, and a February 1993 X-ray report from the VA Medical
Center in Lexington. However, it does not appear that all of
the veteran's VA treatment records have been associated with
the claims folder.
For example, there are no treatment records in the claims
folder from Louisville. Additionally, although an October
1994 VA treatment record received from the Pensacola VA
outpatient clinic lists the veteran's address as in
Lexington, Kentucky, and the record contains a February 1993
X-ray report of the hands from the VA Medical Center in
Lexington, the veteran stated that he was treated at VA
facilities in Lexington and Louisville from "1992-1979,"
which the Board assumes was intended to read 1992-1999.
Thus, it would appear that there are still outstanding
records from that facility. Moreover, the veteran indicated
that he received treatment in Newark from 1963 to 1969, but
the record only contains the June 1963 VA examination report
from Newark.
Under Bell v. Derwinski, 2 Vet. App. 611, 613 (1992), VA
treatment records are considered to be constructively
included within the record. Therefore, this matter must be
remanded in order that any outstanding VA medical records be
obtained and associated with the claims folder. Moreover,
current examination should be conducted to ascertain whether
the veteran does have any arthritic involvement of the hips
and, if so, its etiology.
Accordingly, the Board has no alternative but to defer
further appellate consideration and this case is REMANDED to
the RO via the Appeals Management Center in Washington D.C.
for the following actions:
1. Obtain all VA medical records of the
veteran, including from the VA Medical
Centers in
Lexington, Kentucky and Louisville,
Kentucky, the Pensacola VA outpatient
clinic, and the Newark, New Jersey RO.
In this regard, the June 1963 VA
examination report indicated that the
examination was conducted at the Newark
RO. These records, as well as any other
VA treatment records must be obtained and
associated with the claims folder. If no
additional records exist, or for any
reason the veteran's records are
unobtainable, such must be specifically
noted in the claims folder.
2 Make arrangements to have the veteran
undergo an examination in order to
ascertain whether he does have arthritis
involving the hips and, if so, the proper
diagnosis thereof. After reviewing the
claims folder, the examiner should render
an opinion whether any arthritic
involvement of the hips that is currently
found is at least as likely as not (50
percent probability or more)
etiologically related to any service
connected disability (rheumatoid
arthritis or psoriatic arthritis).
3. The RO should then readjudicate the
claim. Thereafter, if the claim on
appeal remains denied, the appellant and
his representative should be provided an
SSOC. The SSOC must contain notice of
all relevant actions taken on the claim
for benefits, to include a summary of the
evidence and discussion of all pertinent
regulations. An appropriate period of
time should be allowed for response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
C.W. SYMANSKI
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).